TBALink Opinion-Flash

March 11, 1997 -- Volume #3 -- Number #028

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02-New Opinions From TSC

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STATE OF TENNESSEE
vs.
SHANNON RENEE DAVIS
Court:TSC
Attorneys:
For Appellant: For Appellee:
R. Russell Mattocks Charles W. Burson
Morristown, Tennessee Attorney General & Reporter
Michael E. Moore
Solicitor General
Michael W. Catalano
Associate Solicitor General
Nashville, Tennessee
C. Berkeley Bell, Jr.
District Attorney General
John Douglas Godbee
Assistant District Attorney
Rogersville, Tennessee
Judge: ANDERSON
First Paragraph:
We granted the appeal in this case to answer a question of first
impression: whether the trial court had the statutory authority to
order the defendant to pay restitution in addition to ordering a
sentence of incarceration for the offense of vandalism, and to
determine whether the trial court erred in denying the defendant
probation. AFFIRMED.
URL:http://www.tba.org/tba_files/TSC/DAVISSHN_OPN.WP6
BOBBY RIGGS and M-HELICOPTERS
OF TENNESSEE, INC.
vs.
CHARLES W. BURSON, Tennessee Attorney General and Reporter,
CARL JOHNSON, Commissioner of the Tennessee Department of
Transportation
Court:TSC
Attorneys:
For Appellants: For Appellees:
Charles W. Burson Steven E. Marshall
Attorney General & Reporter Marshall & Delius
Sevierville, Tennessee
Michael E. Moore
Solicitor General
Barry Turner
Deputy Attorney General
Nashville, Tennessee
Judge: ANDERSON
First Paragraph:
We granted this appeal to decide whether a state statute prohibiting
the use of land for a heliport within nine miles of the boundary of a
national park is constitutional and, if so, whether it is preempted by
federal law. COURT OF APPEALS REVERSED; TRIAL COURT JUDGMENT
REINSTATED.
URL:http://www.tba.org/tba_files/TSC/RIGGSBOB_OPN.WP6
CGR INVESTMENTS, INC.
vs.
HACKNEY PETROLEUM, INC.
Court:TCA
Attorneys:
For Appellant For Appellee
ARTHUR G. SEYMOUR, JR. BARRY K. MAXWELL
JAMES E. WAGNER Egerton, McAfee, Armistead &
Frantz, McConnell & Davis, P.C.
Seymour, L.L.P. Knoxville, Tennessee
Knoxville, Tennessee
Judge: Susano
First Paragraph:
This appeal is controlled by North Carolina substantive law. Our
focus is on an admitted misrepresentation made during the course of
negotiations to settle a lease dispute. One issue is whether the
misrepresentation is such as to warrant voiding the settlement
agreement subsequently executed by the parties to this litigation.
Following a bench trial, the trial judge held that the settlement
agreement was valid and enforceable. He had earlier determined that
the acknowledged misrepresentation did not constitute an unfair or
deceptive trade practice under the applicable North Carolina statutory
scheme. The plaintiff CGR Investments, Inc. (CGR) appealed, arguing
that the trial court's judgment is wrong in both respects. AFFIRMED IN
PART REVERSED IN PART REMANDED.
URL:http://www.tba.org/tba_files/TCA/CGR_OPN.WP6
TBC CORPORATION
vs.
GENE WALL, GERALDINE WALL, JOE WALL and HELEN WALL
vs.
MARVIN BRUCE
Court:TCA
Attorneys:
JOHN I. HOUSEAL, JR. and JAMES S. STRICKLAND, JR., Glankler Brown,
Memphis, Attorneys for Plaintiff/Third-Party Defendant/Appellants.
THOMAS F. JOHNSTON, PAUL E. PRATHER and STEVEN W. LIKENS, Armstrong,
Allen, Prewitt, Gentry, Johnston, & Holmes, Memphis, Attorneys for
Defendants/Third-Party Plaintiffs/Appellees.
Judge: TOMLIN
First Paragraph:
TBC Corporation ("Plaintiff") filed suit in the Chancery Court of
Shelby County against Joe Wall, Helen Wall, Gene Wall and Geraldine
Wall (collectively "The Walls" or "Defendants") seeking a judgment for
an amount due on an account secured by personal guaranties signed by
defendants. The defendants filed an answer and a third-party
complaint, the latter against Marvin Bruce, plaintiff's president,
("Bruce"), by which they sought indemnification in the event plaintiff
obtained a judgment against them. In their answer, the defendants
denied that the guaranties were still in effect, and in addition,
raised the affirmative defenses of release, waiver, abandonment and
estoppel. The answer and third-party complaint also demanded a jury.
REVERSED IN PART AND AFFIRMED IN PART.
URL:http://www.tba.org/tba_files/TCA/TBC_OPN.WP6
PHYLLIS TRACY and RAYFORD TRACY
vs.
EXXON CORPORATION, d/b/a EXXON SHOP
Court:TCA
Attorneys:
EDWIN C. LENOW
Memphis, Tennessee
Attorney for Appellants
JOHN J. HEFLIN, III
ALEX C. ELDER
BOURLAND, HEFLIN, ALVAREZ, HOLLEY & MINOR, PLC
Memphis, Tennessee
Attorneys for Appellees
Judge: HIGHERS
First Paragraph:
In this slip and fall case, the Plaintiffs, Phyllis and Rayford Tracy,
filed suit against the Defendant, Exxon Corporation, for injuries
sustained from Phyllis Tracy's fall at the Defendant's place of
business. The trial court granted summary judgment in favor of the
Defendant based upon the open and obvious rule. The Plaintiffs have
appealed the trial court's order granting the Defendant's motion for
summary judgment arguing that the open and obvious rule does not apply
in this case. AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/TRACYP_OPN.WP6
KENNETH VALENTINE and wife, RITA VALENTINE
vs.
DOUG WEATHERFORD
Court:TCA
Attorneys:
CARTHEL L. SMITH, JR.
Lexington, Tennessee
Attorney for Plaintiffs/Appellants
JOHN S. LITTLE
WALDROP & HALL
Jackson, Tennessee
Attorney for Defendant/Appellee
Judge: HIGHERS
First Paragraph:
In this slip and fall case, the Plaintiffs, Kenneth and Rita
Valentine, filed suit against the Defendant, Doug Weatherford, for
injuries sustained from Kenneth Valentine's fall at the Defendant's
home. The trial court granted the Defendant's motion for summary
judgment based upon application of the open and obvious rule. The
Plaintiffs have appealed the trial court's order granting the
Defendant's motion for summary judgment arguing that the open and
obvious rule does not apply to the facts of this case. AFFIRMED.
URL:http://www.tba.org/tba_files/TCA/VALENTIN_OPN.WP6
RONALD ALBERT BRUMMITT
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Douglas A. Trant Charles W. Burson
900 South Gay Street Attorney General & Reporter
Suite 1502
Knoxville, TN 37902 Eugene J. Honea
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Charles Hawk
District Attorney General
and
Roger Delp
Asst. District Attorney General
P.O. Box 703
Kingston, TN 37763
Judge: WELLES
First Paragraph:
The petitioner, Ronald Albert Brummitt, appeals the trial court's
dismissal of his petition for post-conviction relief. The single
issue presented for review is whether the petition was barred by the
statute of limitations. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/BRUMMITT_OPN.WP6
CHICO LOPEZ CHIGANO
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Mark Stephens Charles W. Burson
Knox County Public Defender Attorney General and Reporter
David Gall Timothy F. Behan
Asst. Public Defender Assistant Attorney General
1209 Euclid Avenue Criminal Justice Division
Knoxville, TN 37921 450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Robert Jolley
Asst. District Attorney General
City-County Building
Knoxville, TN 37902
Judge: Hayes
First Paragraph:
The appellant, Chico Lopez Chigano, appeals the Knox County Criminal
Court's dismissal of his petition for post-conviction relief. On
appeal, the appellant raises only one issue: Whether his trial counsel
was ineffective for failure to request an accomplice instruction at
trial. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CHIGANO_OPN.WP6
STATE OF TENNESSEE
vs.
KENNETH CULP
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Julie K. Pillow Charles W. Burson
Assistant Public Defender Attorney General & Reporter
P.O. Box 700 500 Charlotte Avenue
Somerville, TN 38068 Nashville, TN 37243-0497
(Trial and Appeal)
Ellen H. Pollack
David S. Stockton Assistant Attorney General
Assistant Public Defender 450 James Robertson Parkway
P.O. Box 700 Nashville, TN 37243-0493
Somerville, TN 38068
(Trial Only) Elizabeth T. Rice
District Attorney General
OF COUNSEL: 302 Market Street
Somerville, TN 38068
Gary F. Antrican
District Public Defender James W. Freeland, Jr.
P.O. Box 700 Assistant District Public Defender
Somerville, TN 38068 302 Market Street
Somerville, TN 38068
Judge: Jones
First Paragraph:
The appellant, Kenneth Culp, was convicted of escape, a Class E
felony, by a jury of his peers. The trial court, finding the
appellant to be a career offender, imposed a Range III sentence
consisting of confinement for six (6) years in the Department of
Correction. In this Court, the appellant contends the trial court
committed error of prejudicial dimensions by (a) permitting a
sheriff's deputy to testify regarding a telephone call he received on
the evening the appellant escaped, (b) failing to instruct the jury on
the defense of duress, and (c) giving an erroneous instruction on the
defense of necessity. After a thorough review of the record, the
briefs of the parties, and the authorities which govern these issues,
this Court is of the opinion the judgment of the trial court should be
affirmed. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/CULPKEN_OPN.WP6
STATE OF TENNESSEE
vs.
CECIL WAYNE FOWLER
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Pamela Drewery Charles W. Burson
Asst District Public Defender Attorney General of Tennessee
227 West Baltimore and
Jackson, TN 38301 Sarah M. Branch
(AT TRIAL) Assist Attorney General of Tenn
450 James Robertson Parkway
George Morton Googe Nashville, TN 37243-0493
District Public Defender
and James G. (Jerry) Woodall
Pamela J. Drewery District Attorney General
Assit District Public Defender and
227 West Baltimore Don Allen
Jackson, TN 38301 Asst District Attorney General
(ON APPEAL) P.O. Box 2825
Jackson, TN 38302-2825
Judge: Tipton
First Paragraph:
The defendant, Cecil Wayne Fowler, appeals as of right from the
revocation of his probation by the Madison County Circuit Court. He
contends that the trial court abused its discretion by revoking his
probation. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/FOWLERC_OPN.WP6
THOMAS W. HEATON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
John G. McDougal Charles W. Burson
Attorney at Law Attorney General and Reporter
701 Broad St.
Tivoli Center, Suite One LL Robin L. Harris
Chattanooga, TN 37402 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox III
District Attorney General
Yolanda Mitchell
Asst. District Attorney General
Third Floor, Courts Building
Chattanooga, TN 37402
Judge: Hayes
First Paragraph:
The appellant, Thomas W. Heaton, appeals the trial court's denial of
his petition for post-conviction relief. The appellant is currently
serving a sentence of nine years in the Tennessee Department of
Correction pursuant to his guilty plea to aggravated burglary. The
appellant presents the following issues for our consideration: first,
whether his plea of guilty was knowing and voluntary, i.e. "made with
knowledge of the 'relevant circumstances and likely consequences,'"
King v. Dutton, 17 F.3d 151, 153 (6th Cir.), cert. denied, U.S.,
114 S.Ct. 2712 (1994)(citation omitted); second, whether appointed
counsel was ineffective in failing to ensure that the appellant
understood the terms of the plea agreement. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/HEATON_OPN.WP6
STATE OF TENNESSEE
vs.
MILTON S. JONES, JR
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Mark A. Mesler Charles W. Burson
200 Jefferson Avenue Attorney General & Reporter
Memphis, TN 38103
(on appeal only) Robin L. Harris
Assistant Attorney General
Marvin Ballin 450 James Robertson Parkway
200 Jefferson Avenue Nashville, TN 37243 0493
Memphis, TN 38103
(on appeal and at trial) J. Robert Carter, Jr.
and
Terry Harris
Asst. District Attorneys General
Shelby County Dist Atty's Office
201 Poplar Avenue, Third Floor
Memphis, TN 38103
Judge: WADE
First Paragraph:
The defendant, Milton S. Jones, Jr., pled guilty to one count of
aggravated sexual battery of a child less than thirteen (13) years of
age. Tenn. Code Ann. S 39-13-504. On the initial direct appeal, this
court remanded for resentencing. State v. Milton S. Jones, Jr., No.
02C01-9304-CR-00076 (Tenn. Crim. App., at Jackson, March 23, 1994).
The trial judge then sentenced the defendant to a Range I, nine-year
term. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/JONES5_OPN.WP6
JIMMY EARL LOFTON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JIMMY EARL LOFTON, pro se CHARLES W. BURSON
CCA - South Central Corr. Center Attorney General and Reporter
P.O. Box 279
Clifton, TN 38425-0279 ELLEN H. POLLACK
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
TOM HENDERSON
Asst District Attorney General
201 Poplar Avenue
Third Floor
Memphis, TN 38103
Judge: RILEY
First Paragraph:
Jimmy Earl Lofton appeals the judgment of the Shelby County Criminal
Court denying his petition for post-conviction relief. He was
declared an habitual criminal at a trial in 1985. In 1995, one of the
underlying convictions was set aside. He now contends that the
habitual criminal finding should be set aside. The trial court denied
post-conviction relief without a hearing. On appeal, Lofton presents
two issues for our review: (1) whether he was denied the right to a
fair trial by the use of a 1970 conviction which was subsequently
vacated; and (2) whether the reasonable doubt jury instruction
violated due process. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/LOFTONJ_OPN.WP6
TIMOTHY L. LOVELACE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN S. WILDER & ASSOCIATES CHARLES W. BURSON
ANDREW S. JOHNSTON Attorney General and Reporter
108 E. Court Square
Somerville, TN 38068 SARAH M. BRANCH
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
ELIZABETH RICE
District Attorney General
CHRIS MARSHBURN
Assistant District Attorney
302 Market Street
Somerville, TN 38068
Judge: SMITH
First Paragraph:
Appellant Timothy L. Lovelace appeals the trial court's denial of his
petition for post-conviction relief. He presents the following issues
for review: (1) whether the trial court erred in finding that his
trial counsel rendered effective assistance; and (2) whether the trial
court erred in finding that no due process violation occurred where
the judgment offense was of a different class than the plea offense.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/LOVELACE_OPN.WP6
STATE OF TENNESSEE
vs.
BRYANT DEWAYNE MILLEN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Leslie I. Ballin Charles W. Burson
Mark A. Mesler Attorney General & Reporter
Ballin, Ballin & Fishman, P.C.
200 Jefferson Avenue, Suite 1250 Timothy F. Behan
Memphis, TN 38103 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
John W. Pierotti
District Attorney General
Thomas D. Henderson
Asst. Dist. Attorney General
201 Poplar, Third Floor
Memphis, TN 38103
Judge: SUMMERS
First Paragraph:
The appellant, Bryant Dewayne Millen, was indicted on one count of
first degree murder and one count of felony murder. He was convicted
by a jury of first degree murder and sentenced to life imprisonment.
AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/MILLENB_OPN.WP6
STATE OF TENNESSEE
vs.
JOHN MILLER, JR.
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Terry L. Jordan Charles W. Burson
Assistant Public Defender Attorney General & Reporter
P.O. Box 839
Blountville, TN 37617 Darian B. Taylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Phyllis H. Miller
Asst District Attorney General
P.O. Box 526
Blountville, TN 37617
Judge: WADE
First Paragraph:
The defendant, John Miller, Jr., was convicted of reckless
endangerment with a deadly weapon, a felony. Tenn. Code Ann. S 39-13
103(b). The trial court imposed a two-year sentence. In this appeal
of right, the defendant challenges the sufficiency of the evidence and
claims the sentence was excessive. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/MILLERJ_OPN.WP6
STATE OF TENNESSEE
vs.
ANTHONY PULLIAM
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Walker Gwinn Charles W. Burson
Assistant Public Defender Attorney General & Reporter
201 Poplar Avenue, Suite 2-01 500 Charlotte Avenue
Memphis, TN 38103 Nashville, TN 37243-0497
(Appeal Only)
Ellen H. Pollack
Samuel L. Perkins Assistant Attorney General
Assistant Public Defender 450 James Robertson Parkway
201 Poplar Avenue, Suite 2-01 Nashville, TN 37243-0493
Memphis, TN 38103
(Trial Only) John W. Pierotti
District Attorney General
OF COUNSEL: 201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
A C Wharton, Jr.
Shelby County Public Defender James M. Lammey
201 Poplar Avenue, Suite 2-01 Asst District Attorney General
Memphis, TN 38103 201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Judge: Jones
First Paragraph:
The appellant, Anthony Pulliam, was convicted of aggravated robbery, a
Class B felony, by a jury of his peers. The trial court found the
appellant was a multiple offender and imposed a Range II sentence
consisting of confinement for fourteen (14) years in the Department of
Correction. The appellant contends the trial court committed error of
prejudicial dimensions by failing to instruct the jury on the lesser
included offense of robbery. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/PULLIAMA_OPN.WP6
STATE OF TENNESSEE
vs.
GUY WILLIAM RUSH
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Leslie S. Hale Charles W. Burson
Asst. Public Defender Attorney General and Reporter
P. O. Box 839
Blountville, TN 37617 Susan Rosen
Assistant Attorney General
Stephen M. Wallace Criminal Justice Division
District Public Defender 450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
Edward E. Wilson
Asst. District Attorney General
Blountville, TN 37617
Judge: Hayes
First Paragraph:
The appellant, Guy William Rush, appeals as of right from the order of
the Sullivan County Criminal Court revoking his probation. The
appellant presents one issue for our review. He contends that the
trial court abused its discretion in revoking his sentence of
probation. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/RUSHGW_OPN.WP6
ADRIAN WAITE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant:
ON APPEAL:
Gerald L. Gulley, Jr.
BAKER, McREYNOLDS, BYRNE, BRACKETT, O'KANE & SHEA
P.O. Box 1708
Knoxville, TN 37901-1708
For Appellee:
Charles W. Burson
Attorney General & Reporter
William David Bridgers
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Judge: WADE
First Paragraph:
The petitioner, Adrian Waite, appeals the trial court's dismissal of
his petition for post-conviction relief. The single issue presented
for our review is whether the trial court erred by dismissing the
petition without the appointment of counsel or an evidentiary hearing.
REVERSED AND REMANDED.
URL:http://www.tba.org/tba_files/TCCA/WAITEA_OPN.WP6
ERIC WEBB
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT; FOR THE APPELLEE:
R. Price Harris Charles W. Burson
Attorney at Law Attorney General & Reporter
3074 East Street 500 Charlotte Avenue
Memphis, TN 38128 Nashville, TN 37243-0497
Ellen H. Pollack
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
John W. Pierotti
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Jennifer S. Nichols
Asst District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Judge: Jones
First Paragraph:
The appellant Eric Webb, appeals as of right from a judgment of the
trial court dismissing his suit for post-conviction relief following
an evidentiary hearing. The appellant contends the trial court
erroneously concluded he was afforded the effective assistance of
counsel within the meaning of the United States Constitution and the
Tennessee Constitution. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WEBB3_OPN.WP6
STATE OF TENNESSEE
vs.
LAMAR WEDDLE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
G. Stephen Davis Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Clarence Cochran George Linebaugh
Assistant Public Defender Asst Attorney General of Tennessee
208 Mill Avenue 450 James Robertson Parkway
Dyersburg, TN 38024 Nashville, TN 37243-0493
(AT TRIAL)
C. Phillip Bivens
Bill R. Barron District Attorney General
124 East Court Square 115 East Market St.
Trenton, TN 38382 Dyersburg, TN 38024
(ON APPEAL)
Judge: Jones
First Paragraph:
The defendant, Lamar Weddle, was convicted in a jury trial in the Dyer
County Circuit Court of possession of over one-half gram of cocaine
for resale, a Class B felony. The trial court sentenced the defendant
as a Range I, standard offender to eight years in the custody of the
Department of Correction and imposed a fine of two thousand dollars.
In this appeal as of right, the defendant contends (1) that the
evidence is insufficient to support his conviction and (2) that the
trial court erred by refusing to grant him some form of sentencing
alternative to incarceration. We disagree. AFFIRMED.
URL:http://www.tba.org/tba_files/TCCA/WEDDLE_OPN.WP6

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